Can paid personal and carers’ leave be accessed whilst stood down due to COVID-19?

Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Qantas Airways Limited [2020] FCA 656 

Date of judgement: 18 May 2020  

Proceeding one: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Australian Workers’ Union and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union  

Outcome: Application dismissed  

Proceeding two: Transport Workers’ Union  

Outcome: Application dismissed 

Decision   

COVID-19 is forcing many businesses worldwide to make unprecedent decisions regarding their employees. The travel and aviation industry remains one of the hardest hit areas. In mid-March 2020, Qantas stood down two-thirds of its 30,000 employees. Many staff were suddenly left without any source of income and Qantas was denying access to paid personal or carers’ leave. Two separate proceedings were then launched by the respective unions.  

Both proceedings considered s 96 and s 105 of the Fair Work Act 2009 (Cth) (‘Fair Work Act’) and were heard together. The applicants argued that stood down Qantas staff should have access to all paid leave entitlements. Qantas claimed stood down staff should not have access to their accrued paid compassionate or personal and carers’ leave. Judge Flick ultimately agreed with Qantas and dismissed both originating applications.   

Background  

Workers were stood down under the relevant Enterprise Agreement or s 524 of the Fair Work ActThere is no dispute that staff were lawfully stood down. His Honour based his decision on the determination that personal and carers’ leave is an entitlement on the part of an employee to take leave from otherwise performing the work they are obligated to perform.  

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2019] HCA established the role of s 96 Fair Work Act. Under section 96, leave is classified as a ‘form of income protection’ to protect employees from a loss of income but leave alone is not a source of income. Ultimately, to have access to leave entitlements, an employee must be receiving an income.    

Qantas successfully argues that “’income’ is not being protected if there is no available or required work for which to derive income in the first place”.  Leave is an entitlement for an employee to be relieved of their obligation to attend work and in the current circumstances, employees have been lawfully stood down and there is no work for them to perform and thereby derive an income. They are thus not entitled to access compassionate or personal and carers’ leave under ss 96 and 105.   

His Honour dismissed both applications but noted the grave importance of resolving this dispute and highlighted that due to time restrictions, greater and more detailed consideration of relevant authorities could not be completed. 

How can we help? 

The Federal Court’s ruling that Qantas has the right to not pay its stood down employees sick leave pay during the pandemic is a reminder that the legal landscape is changeable. It is our role to keep up with these changes to assist our clients’ needs. 

If you are a business owner and are unsure as to how to best protect your business or what your responsibilities are in any given situation, please contact our office for further advice. We are offering a special discount for business owners during this time. 

If you are a worker and are unsure as to how to best protect your job or your income, please contact our office for further advice. We are offering a special discount for employees during this time. 

Authors: Fran Keyes & Elyse Staunton

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